Bill Beattie

[2013] FWC 2760

[2013] FWC 2760

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.510—Upon referral, revoke or suspend an entry permit

Bill Beattie
(RE2013/789)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 7 MAY 2013

Consideration as to whether action to be taken by the Fair Work Commission under s.510 following decision of Delegate in [2013] FWCD 1826 - revocation or suspension of entry permits - exception where harsh or unreasonable.

[1] The following decision, now edited, was given in transcript on 24 April 2013.

[2] On 13 July 2012, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for an entry permit for Mr Bill Beattie pursuant to s.512 of the Fair Work Act 2009 (the Act). The application was dealt with by a delegate of the Fair Work Commission, Mr Murray Furlong on 25 March 2013. Delegate Furlong considered the application and decided that Mr Beattie was a fit and proper person, taking into account the permit qualification matters in s.513 of the Act however he did not issue an entry permit at that time 1.

[3] Delegate Furlong determined, having regard to the time that had elapsed between the making of the application to issue a permit to Mr Beattie and the delegate’s consideration of the application, that it was not appropriate at that time to issue a permit. Instead the delegate required the CFMEU and Mr Beattie to submit further declarations as required by the Fair Work Australia Rules 2010 in relation to the period that had elapsed. Presumably the purpose of seeking the additional information was to enable the delegate to determine whether any of the relevant circumstances had changed since the time when the CFMEU had first made its application. Further declarations were received by the delegate on 15 April 2013 and a permit was issued to Mr Beattie on the same day.

[4] In the delegate’s reasons for decision of 25 March 2013, he made the following observations:

“Further, a contravention of s.503(1) of the Act enlivens the obligation under s.510 for the Commission to take action against the permit holder to revoke or suspend each entry permit held by them. Section 510 sets out the circumstances following which the Commission must take action to suspend or revoke a permit, exceptions for when the Commission may refuse to suspend or revoke a permit, the minimum period that a permit must be suspended and a requirement to consider the imposition of ‘ban period’ on the issuing of any further permits.

The Commission has not taken action against Mr Beattie under s.510. As the Commission “must” take action, I will refer the matter to a member of the Commission for consideration.” 2

[5] The matter was referred to the President and, pursuant to a direction from the President under s.582 of the Act, the matter was to be dealt with by me. The observations made by the delegate, and noted above, are provided in the context of the decision of Riethmuller FM in White v Benstead and others 3. In that decision the learned Federal Magistrate imposed a penalty on Mr Beattie of $1000 after finding that Mr Beattie had contravened s.503 of the Act.

[6] Section 503 concerns misrepresentation about things that are authorised by the right of entry provisions under the Act. Section 510 of the Act provides that the Fair Work Commission must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the enumerated events in paragraphs (a) to (f) has happened since the first of those permits was issued. Relevantly paragraph (a) provides that one of those events is that the permit holder “was found in a proceeding under this Act to have contravened subsection 503(1) (which deals with misrepresentations about things authorised under this Part)”.

[7] The reference in s.510 to “each entry permit held by a permit holder”, in my view, means each current permit held by a permit holder. The reference to the event happening “since the first of those permits was issued” requires there to be a chronological sequence between the issuing of the earliest of any permit held by the permit holder and the happening of the event. The first date of issue of any current permits must precede the event in order to enliven s.510.

[8] Mr Beattie is the holder of only one current permit, which was issued on 15 April 2013. The finding against Mr Beattie of a contravention of s.503(1), which concerned the delegate, occurred prior to the issuing of the current entry permit. As the finding that Mr Beattie contravened s.503(1) predates the issuing of the permit, self-evidently, s.510 has no work to do. Therefore this Commission is not required to take any step under s.510 in relation to Mr Beattie’s entry permit issued on 15 April 2013. I dismiss the matter accordingly.

DEPUTY PRESIDENT

Appearances:

K. Marshall for the Construction, Forestry, Mining and Energy Union for Mr Beattie.

Hearing details:

2013.

Melbourne:

April 26.

 1   See Construction, Forestry, Mining and Energy Union (RE2012/1397) [2013] FWLD 1826

 2   [2013] FWLD 1826 at [40]-[41]

 3 (2011) FMCA 920

Printed by authority of the Commonwealth Government Printer

<Price code A, PR536284>